This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-95-2162

State of Minnesota,

Respondent,

vs.

Akeem Pendleton,

Appellant.

Filed November 5, 1996

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. 94111239

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Lawrence W. Pry, Assistant State Public Defender, LEC 304, 875 Summit Avenue, St. Paul, MN 55105 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Akeem Pendleton challenges his convictions of first- and second-degree assault, alleging the trial court's self-defense jury instructions were inaccurate and misleading in that the instructions required him to meet the three conditions set forth in State v. Boyce, 284 Minn. 242, 170 N.W.2d 104 (1969), to justify his use of deadly force. We affirm.

D E C I S I O N

"Trial courts are allowed 'considerable latitude' in the selection of language in the jury charge." State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)). However, the jury instructions, viewed in their entirety, must fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988) (citations omitted). "Defendant should be given a new trial if it cannot be said beyond a reasonable doubt that the error [in jury instructions] had no significant impact on the verdict." State v. Olson, 482 N.W.2d 212, 216 (Minn. 1992).

In Minnesota, the use of force in self-defense is authorized by statute. Minnesota Statute section 609.06 states that

[r]easonable force may be used upon or toward the person of another without the other's consent when the following circumstances exist or the actor reasonably believes them to exist:

* * * *

(3) when used by any person in resisting or aiding another to resist an offense against the person; or

(4) when used by any person in lawful possession of real or personal property, or by another assisting the person in lawful possession, in resisting a trespass upon or other lawful interference with such property;

* * * *

Minn. Stat. § 609.06 (1994) (emphasis added). The statute further provides that

[t]he intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.

Minn. Stat. § 609.065 (1994).

In State v. Boyce, 284 Minn. 242, 170 N.W.2d 104 (1969), the supreme court defined what reasonable force under sections 609.06 and 609.065 is when it declared:

At least three conditions must concur to excuse or justify homicide under SSSS 609.06 and 609.065:

(1) The killing must have been done in the belief that it was necessary to avert death or grievous bodily harm.

(2) The judgment of the defendant as to the gravity of the peril to which he was exposed must have been reasonable under the circumstances.

(3) The defendant's election to kill must have been such as a reasonable man would have made in light of the danger to be apprehended.

Id. at 254, 170 N.W.2d at 112.

Appellant argues that because he raised both the "defense of dwelling" and the defense of resisting an offense which he believed exposed him to great bodily harm or death, it was reversible error for the trial court to require that the Boyce factors be met. We disagree.

First, by specifically referencing section 609.06, section 609.065 incorporates the requirement that only reasonable force is permitted. Thus the trial court's instruction incorporating the second and third Boyce factors was not error. Second, appellant presented evidence and specifically requested a jury instruction on both the "defense of dwelling" and the defense that he was resisting an offense which he believed exposed him to great bodily harm or death. Because all three Boyce factors must be met to establish this latter defense, we conclude beyond a reasonable doubt that inclusion of all three Boyce factors in the instructions did not have a significant impact on the verdict.

Finally, the jury instructions given in this case followed CRIMJIG 7.05 and, viewed in their entirety, accurately reflect the current law of self-defense in Minnesota. See, e.g., State v. Sanford, 450 N.W.2d 580, 585 (Minn. App. 1990), rev. granted (Feb. 28, 1990), order granting rev. vacated (Mar. 22, 1990) (the Boyce conditions must exist to justify the use of deadly force in self-defense under Minn. Stat. Secs. 609.06 and 609.065); Bellcourt v. State, 390 N.W.2d 269, 272 (Minn. 1986) ("In Minnesota, three conditions [Boyce conditions] must exist in order to excuse or justify the use of deadly force under Minn. Stat. Secs. 609.06, .065 (1984)."); State v. Austin, 332 N.W.2d 21, 24 (Minn. 1983) ("Three conditions [Boyce conditions] must concur to excuse or justify the use of deadly force under Minn. Stat. Secs. 609.06 and 609.065 (1982)."). Therefore, we conclude the trial court's jury instructions were not inaccurate or misleading.

Affirmed.